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Subject: Development of Creative Commons licenses

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  • From: Joachim Durchholz <jo AT durchholz.org>
  • To: Discussion on the Creative Commons license drafts <cc-licenses AT lists.ibiblio.org>
  • Subject: Re: [cc-licenses] CC strategic elements
  • Date: Thu, 10 May 2007 14:26:34 +0200

drew Roberts schrieb:

One of the things that make CC licenses attractive is that they have
been checked using the legal resources available to CC. Anybody who
wishes to use a CC license can do so and rest assured that the license
will do what he wants, and avoid the cost of legal counseling (if
somebody gives his works away, he'll be particularly unwilling to incur
legal costs for that anyway).
I think this part of the strategy has unanimous consent.

I think even at this fundamental a level there is not unanimous consent. For instance, I am here because I want to see Free (libre) works created, getting them for free (gratis) is nice and all, but I actually have an interest in finding ways to help people make a living from creating Free works and dealing in their Free works if they desire to make their living doing so.

None dissent about this part of the strategy that I can see. Whatever the goals, CC is doing many people a huge service simply by providing a set of licenses that have been thoroughly checked to mean the same thing to laymen and legal experts.
There's dissent about the scope of licenses should be provided, and dissent about the goals that such a set of licenses should have. But no dissent that providing checked licenses are a Good Thing.

Now language can be a funny thing, when you said, "CC is trying to encourage giving away works that are typically covered by copyright" did you mean giving away for free (gratis) or did you have something else in mind?

That was indeliberately vague, but I think it can stand as such.
I wasn't trying to pursue an agenda here, I was trying to describe the current state of things with that, and I don't know exactly what CC had in mind.

This is also attractive for licensors because they will know that there will be just
a minimum amount of misinterpretation.

This is a plus too, but not getting that legal advice on works you are giving away (gratis) can still result in gotchas where you think you get the license and you really don't.

That's why it is important that the CC licenses mean the same thing to laymen and legal experts.
The "common-sense" version of each license is clear enough though. Sometimes people apply the wrong license, but only because they didn't actually read the terms and just chose by keyword. (I.e. the keywords can be misunderstood; I don't think the common-sense version can unless you have problems with language in general.)

The third element is offering licenses that aren't really Commons
licenses but that give those who wish to try the CC licenses some
intermediate steps.
This part of the strategy is controversial.

It is, but I am not sure if we have yet pinned down the various reasons and positions leading to the controversy.

The ND clause if far too popular for the taste of many, including Lawrence Lessing himself.

Do you mean ND or NC here and below? For me, NC is at least as controversial as ND.

Sure. I was referring to ND just by example.
I'm not even sure whether NC makes much sense. It doesn't define what "commercial" activity is, and drawing the line is a rather difficult business that requires a lot of legal language.

There's also the example of the FSF that has made the strategic decision
not to offer an ND variant of the GPL, forcing the users of its licenses
to make a clear decision.

They also have no NC variation. This is their reason for being after all. To promote Free software, which has and protects the four freedoms they list. By definition, they cannot offer NC and ND options.

Sure.
I didn't mention it because it didn't contribute to the point I was trying to make: that not offering the full spectrum can sway those who're half on your side to come the full way to your position.

It's one of the things I dislike about the FSF. They're trying to draw me into their position even in those situations where I don't want to. It's also an effective strategy. It's CC's obligation to decide whether they want to be nice or effective, and their judgement call whether being nice might be more effective in the very long run.

On the minus side, this strategy has prevented the FSF from creating a
license for those cases where ND would have been legitimate, polarizing
the programmer community into those that are "pro" and "contra" and
preventing an unideological discourse.

I see this as a plus. CC needs something similar in my view. And it is still possible to have a calm and respectful discourse even with the FSF taking such a stand on the license side.

It is possible, of course, but no other license has draw so much ideological debate.
Of course, that may also be because the GPL is from people who see ideology as an important part of their work. (Which isn't necessarily a Bad Thing, sometimes the world needs ideologists to get stuff done; it just doesn't mean that the ideologists' views should be followed to the letter.)

a) CC should never offer more than five or six discernible elements, be
they license modules that can be combined, or ready-made license
combinations with a specific name such as PD.
This means retracting most (if not all) special licenses and rewording
the general license terms so that they cover the specific cases.

Do you have suggestions? Less is certainly cleaner.

I don't.
The exact selection depends on what exactly the CC wishes to achieve, and what strategies it deems appropriate.

CC might follow the "proselytizing by polarizing" approach of RMS and retract everything that doesn't have an SA clause.
Or it might continue with the ND and NC clauses.

My personal idea would be to merge most of those specialty licenses back into the main licenses, by extending their language so that they cover the specialty cases.
Right now we have a bewildering array of:
* PD
* Dev Nations
* Sampling
* Founder's Copyright
* GPL
* LGPL
* Wiki
* Music sharing
Each is addressing entirely different issues, with different mechanisms, and with entirely different legal language in at least some cases. (Oh, and it's also

For example, SA terms can be reworded to that it covers the intent of
the GPL without becoming useless for other kinds of works, by adding
legal fine print that the licensor grants access to the form of the work
that he used to create (or derive) the work himself.

So, a source code requirement of sorts. Is that you meaning here?

Yes.
I'd even want to say "make available all means needed to process that work". That would include exclusive patents and in-house software, and (hopefully) exclude things like software tools that one can get from other sources. That would need a whole bunch of legal fine print though, so I left that for later discussion.
A propos "later discussion": Obviously, I was unable to follow my own advice here (get basic things out of the way before discussing software).

> If so, I
hope we can formulate a good one as I would like to see one in SA.

It might even be uncontroversial for the FSF.
After all, such a clause would be useful for e.g. comics. If the original author worked with layers, somebody who wants to modify it should have access to the layers, too. You might have to resize speech bubbles, or replace those BLAM! words that didn't go into a speech bubble. (I'd *so* like to translate all those inscriptions as seen on, say, http://www.girlgeniusonline.com/cgi-bin/gg101.cgi?date=20050221 or on the first panel of http://www.girlgeniusonline.com/cgi-bin/gg101.cgi?date=20050302 , but it's such a lot of work...)

It seems to me that each license might benefit from a preamble and philosophy section.

Ah, right. That information is interesting to more people than those here on the list, I overlooked that.

c) As to the ND issue, it's not clear whether CC should continue to
offer it or not. There seem to be good reasons to do either.

Again, do you mean ND here, or NC?

Both, actually. I hadn't though too much about the issue, but I used ND as a blanket term for "all the licenses that aren't really *Commons* licenses".
Though both are fringe cases. They aren't very much of practical use for software, but they *are* useful for other kinds of works.

I'd also like to invite those with whom I had serious flamewars,
provided that we all can stick to the issues and leave out motives,
backgrounds, or other personals.

I don't know if you consider me to have been in a flame war, but I try not to go that route. I am willing to go back and forth trying to reach an understanding though.

We *have* had our differences, but I attribute that more to everybody (including myself) being agitated than anything else.

Actually, I was purposefully including myself in "we all". I can get into a temper if touched the wrong way, and that was at least part of what happened.
That's also why I've been keeping my mouth mostly shut until today, simply to cool off and lurk a bit.

Regards,
Jo




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